But in court — the message is — we look through the surface and see what is really happening. And if it is structured and functions like a tax, it's a tax.

You know, there's a saying that lawyers and lawprofs like. I think it's corny, so I haven't been saying it. I don't think that in 25+ years of teaching law I've ever said it, but I've heard it said so many times, and it's said because it's a way of saying something that lawyers and lawprofs really think about law: If it walks like a duck and quacks like a duck, it's a duck.

Googling that saying, I get — as my first result — a Wikipedia page titled "Duck test."

Indiana poet James Whitcomb Riley (1849–1916) may have coined the phrase when he wrote "when I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck."The phrase may also have originated much later with Emil Mazey, secretary-treasurer of the United Auto Workers, at a labor meeting in 1946 accusing a person of being a communist....

Later references to the duck test include Cardinal Richard Cushing's, who used the phrase in 1964 in reference to Fidel Castro.

Oh! I didn't know I'd encounter so much communism!

Make of it what you will. We have a democracy, and it's not going to work if we can't handle the bullshit.

The President can say it's not a tax, and it's still a tax for the purposes of analyzing the taxing power. The Supreme Court has validated lying.

Did you notice the other case that came out last Thursday also put the stamp of approval on lying? It was United States v. Alvarez — the "Stolen Valor" case. A man who lied and said he'd won the Congressional Medal of Honor was prosecuted, and he won on free speech grounds in the Supreme Court.

So Thursday in the U.S. Supreme Court was a great day for the grand old human practice of lying. From Justice Alito's dissenting opinion in Alvarez:

Respondent’s brief features a veritable paean to lying. According to respondent, his lie about the Medal of Honor was nothing out of the ordinary for 21st-century Americans. “Everyone lies,” he says. Brief for Respondent 10. “We lie all the time.” Ibid. “[H]uman beings are constantly forced to choose the persona we present to the world, and our choices nearly always involve intentional omissions and misrepresentations, if not outright deception.” Id., at 39.

193 comments:

This is a good analysis. I said something along these lines on another post here, and my commentary was so damn brilliant, I'll repost it here:

One way of looking at this is that if the duty of the judiciary is to say what the law is, then that duty extends to cutting through the political rhetoric to say what a law really entails. So if a law entails a tax, regardless of whether those who passed it want to admit that it is or not, it's the job of the Court to say, this law entails a tax. And if the power to pass that tax is constitutional, the rest of the decision follows.

Roberts would look better today if he had said that the law had to be rewritten as a tax before it could be approved as constitutional. He rewrote it for them. That will tarnish his reputation for a long time.

There are few people who hurt the concept of truth more than Clinton. The "Everyone lies under oath" meme cut me to the core. I have testified under oath hundreds, maybe a thousand times, and NEVER lied. And believe me, there were times when the truth was not helpful to me or my client, but I still never considered lying. I know I'm not alone. I'm also not an idiot and know people do lie and even under oath will lie. But that is not the norm.

You can switch the the labels around, play whatever political euphemism games you like, and the judges will let you get away with that. It's propaganda. Knock yourself out. Bamboozle the people. Democracy rolls on.

But not without a price, it must be noted. And at best, that price will be more cynicism, which in the end may not work to the intended benefit of our political betters. Perhaps Mr. CJ Roberts intended to protect the appearance of the Court. He may now find that harder to do than he expected.

Some seriously fiercely angry bird on Fox was insisting it wasn't a tax wasn't a tax wasn't a tax wasn't a tax and I'm sitting here thinking good luck with that sister your Party will be having its ass handed it again and don't pretend to not knowing why.

edutcher sputters:PS As always, some phony folksy has delusions of adequacy. Nice to see he's finally come out from behind his sockpuppets.

I don't know what's sadder, the fact that you think I have multiple personae here, or the fact that you actually have spent a lot of time trying to figure out which other people here are me in another guise. Now that I think about it, they are both equally sad facts and I suspect only two of many in your life.

Also - apparently your humor detector is at its normal low level of functioning, and if my pithy analysis of the case is so bad (and it's an analysis that it appears the proprietor of this blog largely shares), perhaps you can explain why you think it fails. Please share.

See, you have your hands in another's pockets and you're driving them like you're using a walker, using them for support while pulling out cash and speaking into their ears telling them how they are to live their lives all the while saying, "this is not taxing."

You wanted an iPod and a laptop computer a new mountain bike and a set of skis but you'll be having insurance instead now shut up this is a fee this is not a tax not a tax not a tax.

Republicans will never repeal ACA because they will never have the political will to get rid of the pre-existing condition clause.

Republicans have lied though out the decades that this policy debate has been waged. Republicans have never had an honest reform plan to fix our broken system.

Finally, there are all kinds of concepts and objects that have different names and uses depending on the context. A butter knife can be a pretty good screw driver or used as a murder weapon. Think of Robert's use of the word "tax" in this light and it all works out.

I'd have much happier had Roberts simply ruled, "Congress has the authority to enact this under its taxing powers, but as it did not, we have to take them at their word that they did not intend for it to be a tax. Reversed."

Why reward liars, and undermine accountability?

It fosters cynicism. I'm certainly much more cynical about the Court than I was Wednesday.

But as a lawyer it's so much more professionally fulfilling if you can take something that walks and quacks like a duck, and structure it so that, under the law, it's not a duck. That's the real art of it. In tax law, if you're good enough, it won't even be recognized as a bird.

“If [Mitt] Romney is in the White House and I am the majority leader of the Senate, I assure you repeal of Obamacare is the first item on the agenda,” McConnell on Laura Ingraham’s radio show Friday.

By using a budget process called reconciliation, a theoretical Senate GOP majority could successfully vote to repeal the law with just 51 votes, rather than a filibuster-proof 60. Republicans need to pick up four seats to win control of the Senate, or three if Romney wins the White House."

Every time I hear the word 'fee' in relation to ACA the program is set to override the word with 100 instances of 'tax' sprinkled randomly throughout remaining text so that the message becomes garbled with the word tax.

Goes like this:

fee = tax x 100fee fee = tax x 200

And so on. It's mathematical. So then the above message would look like this unreadable passage:

Evetaxry time I hetaxar the wtaxord 'fee'tax in reltaxation to ACtaxA the program is settax to overtaxride the wortaxd with 10tax0 instances of 'tax' spritaxnkled taxrantaxtaxdomltaxy throughotaxut remtaxaining tetaxxt so thtaxat the message bectaxomes garbled with the wotaxrd tataxx.

"White House Already Denying That Mandate Is A Tax. If you deny that it’s a tax, you admit that it’s unconstitutional...."

The "White House" is smart enough to know its voters are too dumb to care about the distinction. It disclaims the tax, secure in the knowledge that a significant cohort of the 53% who voted for Obama the first time around are simply too stupid to learn from experience.

Anyone banking on the notion that any Obama voters will hold him accountable for foisting a new, huge tax increase to "pay" for his broken health care reforms is simply delusional.

Oh bullshit! The Solicitor General, representing the President, said it was a tax. In Court the President said it's a tax. I do not think judges should be trolling the newspapers to see what you say outside of court.

There is a difference between horseshit rhetoric and stuff like perjury. Which is when you lie in court.

Of course the Solicitor General is not under oath, but he has a duty to the Court. When the Obama administration speaks in court, it better be telling the fucking truth.

Here Obama is showing utter contempt for the other branches of the federal government.

His AG is in contempt of Congress.

His SG lies to the Supreme Court.

Obama should be hammered on this hard.

The law has to operate on a theory of truth. This is why perjury is a fucking felony.

Nobody is above the law. You cannot lie in Court. You cannot lie to Congress. You cannot lie to the other branches of government.

Constitutionally, is there anything in this interpretation of this "Tax" that would prevent congress from writing a law that said, "Regardless of your income, regardless of how much property you have, you must pay this tax?"

I'm not aware of any other tax like that. In other words, "Do what we say, or go to jail." This is different than "We are going to take some x% of your money."

The dissent by Scalia,Thomas, Kennedy and Alito terms Robert's arguments "feeble" and "flimsy".

After reading the dissent, I don't see how anybody can find Robert's reasoning the least bit persuasive. Far from preserving the legitimacy of the Court, it does exactly the opposite. To quote the dissenters, it " carries vebal wizardry too far, deep into the forbidden land of the sophists."

Dreams said, “If [Mitt] Romney is in the White House and I am the majority leader of the Senate, I assure you repeal of Obamacare is the first item on the agenda,” McConnell on Laura Ingraham’s radio show Friday.

"But what if Mitt Romney gets elected in 2012, and what if the current 5-4 conservative majority ultimately becomes a 7-2 majority, as Breyer and Ginsburg leave the Court? The Harriet Miers debacle suggests that conservative constituencies will no longer tolerate a Republican nominee who is not a “sure thing.”

David Bernstein with a positive long term spin of the ACA decision.www.scotusblog.com

Well I for one don't know whether it is a tax, a penalty or a mandate. But since I respect the law and especially (he) who I believe to be the most esteemed practicing lawyer in the land (one who argues the case of the United States before the Supreme Court), I'll just go with what what the Solicitor General argued.

This isn't about anything but defending the power of the Court to redefine its power as necessary, including the power to relabel laws passed by Congress as "B" instead of "A," if it suits its policy prerogatives.

I'm in favor of piercing form to get to substance. I wonder, however, if that is not just a talking point here. Were the law reversed such that the mandate would be been illegal if it were a tax, would the court have found it to be a tax? I doubt it.

Speaking of court legitimacy, the Court lost legitimacy long, long ago because of this very adoption of Humpty Dumpty jurisprudence, where truth is irrelevent, where truth does not matter, and most especially the meaning of words does not matter.

Hence, a separate and distinct living and growing human being is merely "potential life" and a non-person, a legal non-entity that can be killed with impunity. Of course, more recently is the advocacy of marriage not having any real meaning, the truth of marriage being totally maleable in order to create the ontological impossibility and legal fiction that is "same-sex marriage."

And then the other day, we get the "it is simultaneously and arbitrarily not-a-tax and is-a-tax depending on what outcome I desire" ruling, where once again truth and words do not matter. A thing is what Humpty Dumpty Roberts says it is, when it is, and again when it is the opposite.

Roberts is about to learn what surrenering to Obama gets him. It gets Roberts a demand that Roberts surrender more.

The strength/weakness factor has swung over to the victorious Dems. They will now clobber him with the weapon he meekly handed over to them back when they were on the ropes and ripe to fall.

It's too late now.

The District of Columbia apparatchiks have forever taken away our say in our own financial freedoms and are throwing a huge victory dance.

Oh yeah, we Americans without a Free Money DC career should just await the alignment of the 60 unbribable Senators and a House majority with a Tea Party's steel spine and a President like Andy Jackson, and then it will magicly fix itself, entitlements and all.

Roberts is a creepy disaster who grabbed defeat from the jaws of victory with a cute pretending that he is smart surrendur ruling.

Donald Douglas said... "Ann, did you see John Yoo's analysis? 'NFIB v. Sebelius: It's Exactly the Big-Government Disaster it Appears to Be'. I think there's a huge upside politically for the right. The longer term constitutional implications don't seem that gloomy either. Could set weak precedents for future Commerce Clause cases, no?"

When did "law profs" get so dumb? Ann votes for the Usurper, and doesn't know that he is not eligible (born British of a British subject father), and you also don't have a clue. Both of you are cowards and frauds. History will spit on those that should have known and alerted the public. All it would take to get rid of this Constitutional disaster is a determination of Obama's Usurpation--- then everything he signed, and his dyke SCOTUS apointments are void. Stand back and let a real patriot take care of it. You all should be ashamed.

edutcher rants: Some phony folksy was all over the place delivering his "wisdom" Thursday (yeah, he's at the office, suure).

I don't recall posting anything here on Thursday. I don't memorize every day when I've posted at this website, but while I posted here a few times yesterday evening, I don't think I did so on Thursday. If I did, it would be with this handle and I sure as hell didn't post anything during the day when the case came down, as that was a particularly busy day for me.

But keep on fantasizing that this is one of many monikers I use here. Whatever fills your time during an otherwise bland day, I suppose.

Does the make-it-up-as-you-go-along, malleable constitution allow any law to take money from persons? Is any demand for money under whatever circumstance a "tax" and thus permitted now? Why even have the 16th Amendment, then? Did Roberts even refer to the type of taxes allowed under that 18th century piece of paper waved around by the commissione suprema di cosa nostra?

The high priests who know all the esoteric liturgical subtleties of the Church of Law will have to help me out.

"So if a fire is raging towards my hosue, and I was careless and stupid and didn't purchase any fire insurance, I can buy fire insurance right before my house burns down?!? Genius! "

Why should people be limited to purchasing insurance before their houses burn down? They've got a lot on their minds, and suppose the house doesn't burn down, after all?

Just wait and buy it afterward. The fact that your home is presently a charred pile of rubble is just one of those pesky pre-existing conditions that selfish evil people use to deny you what's rightfully yours.

Look, I would have preferred the ruling to go the other way, but I see the logic in what Roberts is saying. We pay 7.2% out of our paycheck in "FICA" -- the government calls them Insurance Contributions, but everyone knows that calling them "insurance contributions" is just putting nice words around taxes. If the "penalty" had consisted of garnishing wages sufficient to purchase the lowest-cost acceptable policy on an exchange, plus an additional $1,000 "administrative fee," that would have clearly been a penalty and patenty unconstitutional. How big a sum of money does it have to be to go from Tax to Penalty? I don't know. The threshold is probably that point when government payment + cost of Birth Control Pills and other "free" inclusions is greater than just buying the healthcare policy, so that the tax/penalty/payment becomes coercive.

I'd have much happier had Roberts simply ruled, "Congress has the authority to enact this under its taxing powers, but as it did not, we have to take them at their word that they did not intend for it to be a tax. Reversed."

Well, of course, that was one of the arguments -- that Congress might arguably have the power to do it under the Tax Clause, but it didn't.

Is that the rule of constitutional adjudication now? That if a statute fails under the justification relied upon by Congress and the president, then the Court will go down the line to see if it might come within some other provision, regardless of whether it was ever thought of by anyone prior to reaching the fevered imagination of the judge?

What if the law had also failed under the Tax Clause, must we then look to the power to borrow money? And if that failed, test the law under the naturalization and bankruptcy clauses, then the coin and regulate money power or fixing standards of weights and measures? Maybe we could find authority for the individual mandate in the power to establish post offices??

Must we really go down the line like this? Are challengers now obligated to litigate against each and every provision of the Constitution, every jot and tittle, even though in 230 years of precedent one needed only to address the specific provision at issue in the case?? Apparently so.

As for this particular case, what is the most clear, the provision of the Constitution that best applies to justify the Act, is Art. I, Section 8, "The Congress shall have the Power . . . To declare War."

Congress, the President, and now the Court, with the imposition of this ObamaRobertsCare Tax, have declared war on the liberties of the American people.

Yeah, actually now I'm kind of intrigued. Hey, edutcher, why don't you share with us which commenters here you think are sockpuppets for me or for other commenters? Let's start with comments done on Thursday of this week, since that day seems to have captured your imagination.

This could be a fun game and others can join in. I'll start.

Fen and I are the same person. Just don't tell him, as that might make him angry. And Pogo is me when I haz a sad.

Obama's welcome to claim that it's not a tax. And, you're right, him saying that does not make the law any more or less constitutional than it was when it was passed.

However, it obviously does mean that President Obama is arguing for an unconstitutional interpretation of the law. Does he intend to issue directives to the IRS which refuse to recognize the mandate as a tax, and thus enact his illegal interpretation?

Surely he can't enforce a constitutional law by using means and justifications which are explicitly unconstitutional?

I don't know why anyone would think that voters like being penalized any better than being taxed. It's a penalty and they're progressives. It's not a tax and they're not socialists. It's all hair splitting. When it's time to make your mark in the voting booth you can decide whether your vote has been paid for or not and that's that.

Except for the 51 vote in the Senate thing. That could be big but it won't. Assuming a Senate majority and Romney in the White House, I will eat a bug if president Rino does any such thing. Two bugs. Whatever he does he will say it's the best he could get. Then we can argue about whether he really tried to repeal it or not.

As usual, the best we can hope for is slow ruin instead of instant catastrophe. I don't have enough years left to see what the post-apocalyptic US will look like so I guess I'll hope they slow it down. The rotten bastards.

"When this election is over, one of the lessons that will be learned by the mainstream media is that they no longer have a toe-hold on how Americans receive their news. Never before - in a way that has taken Democrats off stride- have we seen the confluence of an aggressive online community, led by Breitbart, and an aggressive campaign team not willing to cede an inch of ground to Democrats. This combination has created a new political reality. We no longer allow the mainstream media to define the political realities in America. The rise of Breitbart, Drudge and others, combined with an aggressive Romney campaign is a powerful tool in the arsenal of the conservative movement. If I talk to Breitbart about an issue, 1,000s more will hear our message than if we give a quote to one of the hill rags."

www.breitbart.com

A government by the people for the people? Thank you new media and good riddance to the corrupt liberal MSM.

garage, I was thinking about the non-working poor. For them, this provision indicates that they don't actually have to pay the tax/penalty b/c they don't have to file a tax return:

The penalty will be paid as a federal tax liability on income tax returns and is enforced by the Treasury. Individuals that fail to pay the penalty will not be subject to criminal penalties, liens or levies.

I'll grant you that the working poor will have to pay the tax/penalty in order to file for their assorted tax credits.

"Republicans will never repeal ACA because they will never have the political will to get rid of the pre-existing condition clause."

There are much better ways to deal with the "pre-existing condition" issue. Once you allow people to wait until they are sick to buy insurance for no higher price, there is no insurance for anyone.

The French list catastrophic conditions, like cancer and diabetes, and provide 100% coverage for those. However, the coverage is limited to those conditions. Thus, if you have diabetes, appendicitis has to follow the rules of the normal insurance with copays, etc.

"That's odd, Ann, because under the duck analysis, it walks and quacks like.......like a penalty!"

Did you read the relevant part of Roberts' analysis? Read this and, using these details, explain why it's a penalty and not a tax:

Our cases confirm [that we apply a] functional approach. For example, in Drexel Furniture, we focused on three practical characteristics of the so-called tax on employing child laborers that convinced us the “tax” was actually a penalty. First, the tax imposed an exceedingly heavy burden—10 percent of a company’s net income—on those who employed children, no matter how small their infraction. Second, it imposed that exaction only on those who knowingly employed underage laborers. Such scienter require-ments are typical of punitive statutes, because Congress often wishes to punish only those who intentionally break the law. Third, this “tax” was enforced in part by the Department of Labor, an agency responsible for pun-ishing violations of labor laws, not collecting revenue. 259 U. S., at 36–37; see also, e.g., Kurth Ranch, 511 U. S., at 780–782 (considering, inter alia, the amount of the exaction, and the fact that it was imposed for violation of a separate criminal law); Constantine, supra, at 295 (same).

The same analysis here suggests that the shared responsibility payment may for constitutional purposes be considered a tax, not a penalty: First, for most Americans the amount due will be far less than the price of insurance, and, by statute, it can never be more. 8 It may often be a reasonable financial decision to make the payment rather than purchase insurance, unlike the “prohibitory” financial punishment in Drexel Furniture. 259 U. S., at 37. Second, the individual mandate contains no scienter requirement. Third, the payment is collected solely by the IRS through the normal means of taxation—except that the Service is not allowed to use those means most suggestive of a punitive sanction, such as criminal prosecution. See §5000A(g)(2). The reasons the Court in Drexel Furniture held that what was called a “tax” there was a penalty support the conclusion that what is called a “penalty” here may be viewed as a tax. 9

None of this is to say that the payment is not intended to affect individual conduct. Although the payment will raise considerable revenue, it is plainly designed to expand health insurance coverage. But taxes that seek to influence conduct are nothing new. ... That §5000A seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the taxing power.

Yes, Althouse, we've read that. So did Scalia, et al. In fact, it's been debated extensively in the comments section of your own blog.

You find it persuasive; most of us find it ludicrous.

The tax authority is clearly assigned to the Congress for the purpose of raising revenue. An essential difference between a penalty and a tax is this: If the law is fully obeyed in each case, a tax will generate revenue and a penalty will not.

The fact that the penalty is collected by the IRS is far less relevant than the fact that waivers are granted by HHS.

Chip S. above gives a good example of why the entire ACA statute needs to be repealed before we find out more about what else is in it.

Then Jay Retread and Bertie Wooster may be right, and Congress will pass, and Romney will sign, a stature requiring the "pre-existing conditions," and some other things that the polls say the voters "like." That is "democracy in action" and we will have deserved what we get.

Michael K, do you think we as Americans are capable of accepting a uniquely American form of health care? Could we take the best of the world's health care systems and reject the bad aspects (learn from their mistakes) and form our very own?

Does anyone believe in American exceptionalism? Or are we past all that?

"History will judge whether Mr. Roberts saved the reputation of the court or lost his nerve. Many conservatives obviously suspect the latter. Resolved: The government cannot make you eat broccoli, though it may levy a non-broccoli-eating tax on any who refuse."

Do all those countries that have successful health care systems all have socialized medicine? What about Singapore and The Netherlands? As I said it could be uniquely American, but modeled after the best aspects of other countries systems. I don't buy "the demographics are different" argument either.

Chip, we will never reform our health care system by being defeatists and seeing commies behind every bush.

But if the majority feel its hopeless, we can all join poor Pogo in his lamentations.

You'd think corporate America would want a healthy, fit, disease free drone workforce to realize of every last ounce of their potential. I'm sure someone crunched some numbers somewhere and found that a worker unit is, say, 37% more efficient when free of chronic gout, and would actually save money by treating it, or some such thing. And if they aren't paid enough, how can they possibly afford to buy the products they produced?

NO Jay, this is far more important than some dumb political ideology argument. Stop with the partisan politics, THAT is what is ruining this country and allowing those with the real power to distract us from seeing what is really happening to our way of life.

"Does anyone believe in American exceptionalism? Or are we past all that?"

I believe in it. Lets let the private sector and the states create insurance plans that are competitive, plans that meet individual needs, not everyone needs birth control. We don't need one size fits all. The states can be laboratories of democracy Wisconsin and Indiana are good examples.

We should be glad that we provide knee replacements for 70 year old people so they can continue to play golf or whatever. The health care industry provides good paying jobs and that is a good thing but we just need to let the private sector be more efficient, innovating and get the inefficient government bureaucrats out of the way.

Allie... can we agree that we don't want the NHS in America? Maybe we can look at France & Germany who have 2-tiered health care system that seems to work for them. But talking to some libs, they won't be satisfied with anything but single-payer and government run hospitals and clinics.

"Does anyone believe in American exceptionalism? Or are we past all that?"

Here are some ideas from Holman Jenkins WSJ column.

"What would follow is a boom in low-cost, high-deductible plans that leave individuals in charge of managing most of their ordinary health-care costs out of pocket. Because it would be cheap, millions who would opt not to buy coverage will buy coverage. Because it will be cheap, companies will direct their low-wage and entry-level employees to this coverage.

Now these workers will be covered for serious illness or injury, getting the rest of us off the hook. As they grow older, wealthier and start families, they will choose more extensive but still rationally limited coverage. Meanwhile, the giant subsidies ObamaCare would dish out to help the middle class afford ObamaCare's gold-plated mandatory coverage would be unneeded"

The stories about the ACA applying to some and not to others and only really kicking in full penalty in 2016 and applying only to those who have any money goes on and on like a three card monte game on steroids with new rules every week.

It means all life now is of the Federal Bureaucrats, by the Federal Bureaucrats and for the Federal Bureaucrats. Those are the Bureaucrats who lie about everything all of the time and enjoy hurting us.

And that means NOTHING we are promised will ever will happen and medical care is now planned to be a Young and Stupid Marxist Medical Cadre trained to tell us to go away until we die.

I still really am not clear on what the big deal is about recongizing that this is a tax. Functionally, this is no different than a tax hike of X% which is offset by a tax credit for having health insurance. Are you (those of you who are so upset about Roberts' calling this a tax) saying that any such tax credit is equally bad? Is the tax credit of $500 per kid a penalty for being childless?

Let's see what the CBO actually says about the budgetary effects of the insurance coverage provisions of Obamacare from 2012 to 2022:

gross cost of coverage provisions: +$1,762 billion

effect on revenues: +$509 billion

net cost of coverage provisions: $1,252

The absurd claim that the ACA reduces future deficits is based on two bits of nonsense: (1) that future Medicare payment rates for most services will actually be reduced, and (2) layering in assorted tax increases that have nothing to do with the insurance coverage provisions of the ACA.

"Also according to the CBO, ObamaCare reduces our deficit by 124 billion dollars over 10 years. What!? But Mitt Romnney thinks it will add trillions"

Ummm, are you sure?

In March 2012 the CBO released new projections f0r 2013 - 2022, and the results are as critics expected: the ten-year cost of the law's core provisions to expand health insurance coverage has now ballooned to $1.76 trillion. That's because we now have estimates for Obamacare's first nine years of full implementation, rather than the mere six when it was signed into law. Only next year will we get a true ten-year cost estimate. Given that in 2022, the last year available, the gross cost of the coverage expansions are $265 billion, we're likely looking at about $2 trillion over the first decade, or more than double what Obama advertised

I'm not sure who this is from, but I'll submit it without specific attribution:

Democracy is a group of three serial rapists and one woman voting to determine the laws of sexual consent.

Once we were citizens with inviolable rights; now we're subjects of the narrow majority, hoping that they let us keep at least some of the fruits of our labor. It might make you feel good that former law students like Roberts now wield such power, Althouse; and that everyone is discussing your field. Maybe those emotions drove you to defend Roberts with arguments almost as tortured and convoluted as his. (Or maybe those tortured arguments were a subtle meta mockery of Roberts and I missed the joke.)

But how does it feel for someone who specializes in constitutional law, to see the constitution become meaningless? It means whatever the current political majority says it does. It might as well be indecipherable squiggles on parchment.

It's as though you've spent your career studying Bigfoot, chasing after a McGuffin.

For every behavior, society must determine whether it should normalize, tolerate, or reject it. Since we are incapable of easily -- or at all -- divining intent or veracity of a claim, it stands to reason that lying (and its many variants) is implicitly tolerated. However, this does not mean that it should be normalized if it is in society's best interest to promote rejection of that behavior.

That needs to be emphasized. America is a republic governed by a constitution. It is not a democracy and should never become one. Neither a tyranny of a minority nor a majority is desirable, or capable of optimally preserving individual dignity.

Back in they golden age of American exceptionalism there was a form of health insurance called Major Medical which paid for those injuries and illnesses that would tend to bankrupt folks. For your run of the mill health issues you paid out of pocket.

As a wee lad, my son had severe allergies that required twice a month vaccinations which I paid the full cost out of pocket because my at the time excellent insurance did not cover. When he broke his arm playing football I didn't pay a dime.

Yeah, actually now I'm kind of intrigued. Hey, edutcher, why don't you share with us which commenters here you think are sockpuppets for me or for other commenters? Let's start with comments done on Thursday of this week, since that day seems to have captured your imagination.

Seven Machos, 36sfiend, Simon, and our old pal shiloh (as I say, same sneer, same sophistry, same sign of).

Ok, finally, someone has said the court looks at the substance, not the form, of an item. So Obamacare started as an unrelated item in the House. The Senate Dems took that bill, stripped out it's original items and substituted Obamacare. So is the substance and spirit of the Constitution, which stipulates that revenue items must originate in the House, being met?

(edutcher, I don't believe somefeller is the sockpuppeter you're thinking of. I deem him, at least of late, to be one of the good, primarily non-trollish, liberal commenters here. IMHO he's one of the "most improved" commenters. And I've noticed a distinct shift to the political center from him-- not that that's relevant to the question of trollishness or good commenting, but it does distinguish him from "Love."

I don't blame you for thinking sockpuppets are afoot-- there are some "new"/ returning trolls lately-- but I don't think somefeller is one of them.)

I know the DNC writes their talking points, but somebody's writing a lot of boilerplate for them, too.

PS Some phony folksy has taken the stand he's a Libertarian recently as a dodge on the idea that he can put Conservatives on the defensive by accusing them of not adhering to Libertarian ideals. It seems to have gone flat and he's back to his usual, "I hate this place and almost everybody in it; I don't know why I even come here", condescension.

Of course, there's a lot of disagreement between Libertarians (of various stripes) and Conservatives, so any Conservative who doesn't buy a given Libertarian stance shouldn't feel obliged to apologize.

No, n.n, I think Althouse is right. We no longer live in a constitutional republic.

The federal government could impose a tax of 100% of gross income on anyone who doesn't purchase a Chevy Volt, or anyone who doesn't serve a two-year hitch with Greenpeace, and make those people slaves of the state, and 5 of 9 supreme court justices would say it's constitutional.

Or maybe they'd limit that tax to something more "reasonable", some arbitrary number like 10%. Because that wouldn't be coercion, forcing them at gunpoint under threat of imprisonment to spend another 10% of their working lives as slaves to the collective.

I'd argue that this constitutes an admission by the Obama Administration that it made a fraudulent argument before the Court, and that the losing side needs to file for rehearing under SCOTUS Rule 44. Roberts could then agree to the rehearing and subsequently switch sides and overturn the statute. http://rhymeswithright.mu.nu/archives/330601.php

edutcher, I have to hand it to you. With this comment, you set a new bar for absurdly idiotic commentary on this blog. I laughed so hard when I saw this comment, I almost fell from my chair. On the other hand, if you don't believe this and are saying this sort of thing as a sort of performance art, I still have to hand it to you for elevating (or lowering, depends on one's perspective)your game to a whole other level. Bravo!

edutcher goes on to say: Some phony folksy has taken the stand he's a Libertarian recently as a dodge on the idea that he can put Conservatives on the defensive by accusing them of not adhering to Libertarian ideals.

Cite, please. I've never claimed that I am a libertarian. I used to consider myself one (taking a class from Robert Nozick when I was a much younger feller is a happy memory) and still have a lot of respect for libertarian views, but I wouldn't describe myself as a libertarian. But who knows, times and events lead to different conclusions and I will say that the nomination of Gary Johnson as the Libertarian Party's stand-bearer in 2012 is one of the better political developments I've seen in awhile. However, I have pointed out that the Right may talk a good libertarian game, but when push comes to shove, more often than not it's just a question of pick your statism. I suspect most smart libertarians would agree with me on that note and I am happy to mention that little bit of hypocrisy when it's merited.

And Yashu, thanks for your comment. Though I'm kind of wondering if it was a "for a fat guy, you don't sweat much" sort of compliment. Regarding my move to the political center, left or right, I call them like I see them, and I'm not particularly horrified by the fact that Mitt Romney is the GOP candidate in 2012. I won't vote for him, but he doesn't push any major buttons with me. And I said way back in 2008 to not count Romney out, so I'm rather pleased to see that he's done well for himself.

United States v. Alvarez --- didn't this state that you can lie as long as you are NOT benefiting economically? Well, congress and Obama lied, calling the mandate a penalty not a tax to benefit economically. Doesn't that mean their lie is unconstitutional. If they had not lied, the bill would not have passed, therefore, they benefited economically by the lie. Also, it can be argued that individual politicians benefited economical by voting for the mandate rather than a tax via re-election. I find it ironic that in one ruling, lying for personal/economical gain is against the law, while in another ruling lying (mandate v. tax) for personal//economical gain is constitutional because Roberts gleaned the definition from a duplicitous Solicitor General, representing the President, who said it was a mandate before he said it was a tax (by judicial prompting).

Why is it wrong to lie for profit in one case, but not wrong to lie for profit in another?

Ann, Robert's Drexel Furniture argument is refuted in the dissent at pp. 18-24. The conclusive counter-argument, I think, is this:

"Our cases establish a clear line between a tax and a penalty: '[A] tax is an enforced contribution to provide for the support of government; a penalty...is an exaction imposed by statute as punishment for an unlawful act.'...In a few cases, this Court has held that a "tax" imposed upon private conduct was no onerous as to be in effect a penalty. But we have never held--never--that a penalty imposed for a violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress' taxing power--even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. When an act 'adopts the criteria of wrongdoing' and then imposes a monetary penalty as the 'principal consequence on those who trangress its standard,' it creates a regulatory penalty, not a tax. ... So the question is, quite simply, whether the exaction here is imposed for violation of the law."(Dissent at 18-19)

Since the mandate proviision uses the word "shall", it would seem to make a refusal to purchase heath insurance unlawful and therefore the exaction a penalty. Roberts, however, tries to side-step this problem by changing the wording of the mandate from every "applicable individual shall..." to every "applicable individual may...". A case titled New York v. United States case, he says, justifies this reading. (Opinion at 38) On Roberts' view, the mandate is permissive, and the failure to purchase health insurance is entirely lawful. But, as the dissent points out, the word "shall" in the New York case appears only in an introductory provision of the law that "could not impose upon the operative provisions of the Act a mandate that they did not contain." (Dissent at 20) The dissent concludes:

"We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty. ...But we have never--never--treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction as a "penalty." Eighteen times in sec. 5000A itself and elsewhere throughout the Act, Congress called the exaction in sec. 5000A(b) a "penalty."

I think some people are confused on the tax issue. The penalty is only one aspect of the tax. The other is your insurance premium. In many circumstances, an employer will be charged with paying the tax on his employees in the form of their insurance premium. But many employers are now considering not paying and taking the penalty or making employees part-time. If that happens, then you will be charged with paying for your own insurance. As best I can tell, the average premium will be somewhere between $600 and $800 and going up. That is as long as we have insurance companies. The government will be working overtime to do away with them so you are forced to have a single payer system.

As a physician, I can assure you that the whole problem can be summed in one phrase, government interference. This started in the 60's but really got legs in the 80's. Since then, the quality and cost have gone out the window..

In addition, the ruling was such that the government now has authority to do anything it desires. We have lost our freedom.

The voting process seems broken, we now need to consider allowing states to secede.

I said he was taking a Libertarian stand as a dodge (he needs some of that "tricksy" reading comprehension he likes to use when wiggling out of a corner), that he tried to use a Libertarian point to make some Conservatives recant on a particular issue.

And, for all those loong responses on my one little sentence, I have yet to hear a denial.

Now that court said lying is permissible and the congress can tax anything whether or not it can regulate it we have now reached the point that perjury is free speech but congress can tax it. The republicans can pass a lie tax, that should produce mountains of revenue from democrats.

And since the democrats have made purchasing health insurance a requirement to avoid a penalty, they don't want any free riders, the republican next January can up the ante by taxing any able bodied adult between the age of 18 to 65 who doesn't earn a visible living (absent proof of wealth to sustain themselves) require them to forcibly save 20% of their gross income in a mandatory requirement savings plan or pay a tax, require them to provide for their housing, food, clothing, communications needs, purchase life insurance, disability insurance, long term care insurance, illness income loss replacement insurance, unemployment insurance (privatize that), liability insurance and any and all other insurable events. They should also using Kelo ruling, require that every qualified America (that is having an IQ above room temperature and not otherwise mentally challenged) graduate from high school, graduate from college, earn the maximal income they can earn (economic efficiency) and be heavily taxed for not doing so. Since the government requires revenues now and in to the future thus necessitating future taxpayers, it should tax abortions, birth control but exempting the excepted class of idiots, the infertile or those whose gender orientation precludes reproduction and woman whose lives would be endangered by pregnancy. English language being a necessary for maximal income generation, those who are not proficient in the English language ( with the exception of residents of Puerto Rico as long as they are residing on the island) be subject to a tax. since the police are not capable of preventing all crimes and there is a theoretical threat of foreign invasion all qualified citizens must purchase hand guns and long arms along with the necessary ammunition or be subject to a tax. Since fire arms proficiency is essential in fulfilling these duties every qualified citizen must attend regular fire arms training and proficiency training on a gun range or be subject to a tax.

For the government to be able to accomplish these goals it must under the N & P clause set up the Department of Personal Self Sufficiency and Maximal Economic Efficiency and that said department secretary have the authority to issue any and regulations required to achieve the goals as set forth by Congress including the authority to override, repeal, rescind any current or future regulation issued by any other federal department or agency or those of the various states and their subdivisions or any current or future statutes and court rulings that prevent impede or otherwise obstruct the department from achieving the goals required by Congress.

Having this in place, everyone who physically and mentally can work will be employed and not be a burden or a free rider on society. The left will achieve its goal of everyone having their needs provide for any not being free riders on society and the right will be satisfied that every capable individual will be self sufficient and not be a burden society. A Win-Win solution! The Roberts's court said its permissible!

Just think, in one, tops two generations the goals will be achieved, the national debt and state and local debt will be paid off, the left transformed in to Libertarians and the conservatives will have nothing to complain about. Come next january lets git it done!

OK, so, look, imagine that they'd just raised taxes by 10% to pay for the subsidies. At the same time, anyone with health insurance gets a tax credit of $500 per person. Is the condition of "not having health insurance" taxed, penalized, or neither? What if the tax is in place, and everyone is given a voucher that may only be used on health insurance?

Just think, the democrats and the court have now made United health, Aetna, Humana and Blue Cross and Blue Shield into sovereigns capable of levying taxes.

mtrobertsattorney said...

Excellent comment and astute observation. Regrettably neither the courts or the government is barred from sophistry or chicanery.

The court has now officially declared the democratic party the liar party. It won't take much to run an ad with the juxtaposition of democrats calling it a mandate and the court calling it a tax and Roberts comment about elections followed by the tag line of "who do you believe, the democrats, the supreme court or you lying eyes?"

Another ad could do the same with Obama and the democrats promises of economic recovery and reduction of unemployment followed by the tagline of "never mind your lying eyes, do you think the country can survive another four more years of this insanity?" "from the white house to the governors mansion to city hall. From Congress to the state legislature to the city council, they all most go!"

Proffessor, if this crap is what you teach your students(and I kinda like your thinking on somethings), that it's okay to lie to everyone, you meant to say something else, than you are a piss poor instructor.

Words have meaning and consequence, no matter how much you admire Zero, and Bill Clinton.

The congress LIED. The President LIED. And the supreme court said, "You rubes thought they were telling the truth? God you're stupid"

If this is what you teach at your "high rated Law School", you might ought to just quit.

Or, you could use your godlike lawyer powers to read all that I wrote as a clap on the back for a well done job.(it wasn't)

I'm sick of hearing how the taxes are OK because there is popular revolt against them. Consider all the hidden taxes.

There are taxes on your phone, increased costs, to subsidize other people's access. There are subsidies in electric usage, through "Tiered" electric usage. Same for gas usage, and same for water usage. Now insurance has always been a subsidy business, of a sort, but here the US government is changing the rules again. They are forcing companies to take high risk patients, and not allowing them to charge them more. What's that do? Increase the costs for everyone else.

People don't think of these things as "Taxes." But they are. They are the government's way of forcing the middle class to pay for Welfare. People don't think of this as taxation for welfare, but that's what it is.

The essential problem with this is that it does not show up on the records. People struggling themselves should not have to pay welfare. And furthermore, the cost of welfare should be clearly understood.

So as your insurance rates go up for all kinds of reasons, the federal government will still look like it's not taking in that much money, but it will be. And once again, the middle class will be subsidizing the whole thing. Not those most able to afford it, since this tax is per head, and not income based.

So Ann, I disagree with your analysis that there will be push back on this. It will be hidden, and what will happen is it will be even harder for the middle class to accrue the wealth necessary for inter class mobility.

Rather, it pushes strength into the incumbent institutions of the federal government, those with large wealth already, and causes stagnation.

If I take an insurance plan (really a health management plan) under this, I'm accepting a great loss of autonomy and disposable income. If I pay the tax, then I'm effectively paying into a single payor system and bringing about the demise of "private" "insurance", right? Why the hell don't people know what "insurance" is in this country? Is it really "insurance" if it covers pre-existing conditions?

I would not mind subsidizing the ill and those who truly can't afford insurance, but this really is a huge power grab.

Some phony folksy has spent the entire afternoon bloviating about one sentence most people would have either laughed off or ignored.

Surprising how insecure he is.

PS A good many of the commenters here have identified one or more trolls as somebody else's sockpuppet. If some phony folksy is trying to prove he is a good little nephew of his Uncle Saul, he may have come to the wrong place.

So why, when Roberts came to the conclusion that it was a tax (if only because it quacks), did he not immediately say the case wasn't ripe (that is the way lawyers describe it, isn't it?) under the Anti-Injunction Act? Alternatively, if it was held to NOT be a tax during oral arguments, shouldn't that preclude any further possible consideration of it being a tax? IANAL, so I'm not really up on all of their Jedi mind tricks.

Hope this comment goes through the spam filter. Posted one yesterday morning asking pretty much the same question and it never arrived...

Jay Retread...Republicans can deal with the whole pre existing condition issue without keeping Obamacare...even McCain talked about that back in 2008. He said we could sit up high risk pools. In fact, the other day Romney himself said we would deal with pre existing conditions and repeal the bill as well.

"The congress LIED. The President LIED. And the supreme court said, "You rubes thought they were telling the truth? God you're stupid""

Actually, that's not accurate.

The Congress and the President really did, honest to God, not want the ACA to be written, construed or otherwise interpreted as a "tax."

EVERYONE knows Congress has the authority to enact things like the ACA under its taxing authority.

The plain, simple, unavoidable truth is, the Congress and the president not only didn't want the mandate to be a tax, they worked to make sure it wouldn't be a tax.

So, it isn't that Congress lied, or the president lied; the crime against common sense, the crime against the plain meaning of the law, is Roberts', and Roberts' alone.

He, alone (we all knew, Roberts' too, that the four liberals would agree to call it a "space rocket fueled by unicorn farts" if that is what it took to slip it by constitutional tests) determined it was a tax, to achieve a policy outcome, or some such outcome he thought necessary.

"So why, when Roberts came to the conclusion that it was a tax (if only because it quacks), did he not immediately say the case wasn't ripe (that is the way lawyers describe it, isn't it?) under the Anti-Injunction Act? Alternatively, if it was held to NOT be a tax during oral arguments, shouldn't that preclude any further possible consideration of it being a tax? IANAL, so I'm not really up on all of their Jedi mind tricks."

edutcher fumbles: Some phony folksy has spent the entire afternoon bloviating about one sentence most people would have either laughed off or ignored.

My initial response to said sentence: edutcher, I have to hand it to you. With this comment, you set a new bar for absurdly idiotic commentary on this blog. I laughed so hard when I saw this comment, I almost fell from my chair.

That sure sounds like someone laughing it off. My later comments followed suit, as did those of others. If fact, I'm guessing a lot of people are having a chuckle or two while reading this thread.

But please continue, edutcher. I have no doubt you have other fascinating theories you can share.

By the way, has anyone else noticed that Titus and The Crack Emcee have never been seen in the same place? edutcher, there's another mystery for you to investigate!

Looks like the Althouse post here is quite wrong, because as I've explained here in these comments before, you should do for me.

I don't see how this post does for me, so I am against it as me, myself: I, an individual and human being solely, myopically concerned about Others because I am better than them all, simply never lie to myself.

They, the faceless, need my help, as they lie to themselves.

I never lie to myself.

I am too beautiful; benevolent, Buckleysque, Reagan-like in his very best of days, and blessed with a small penis [easy access] that would shrivel within an M. Dowd column-width of a cervix, I am perfection on mere earth.

"I’m in the swamp. A line in a bill that says “PPACA is repealed” would have budgetary effects and a CBO score. Over the last two years I’ve talked to plenty of Republicans who have experience with reconciliation, and they do not think this is an impossible mission. CBO, as Lizza notes, has in the past found Obamacare to be a money-saver for the government, but it may not so find it in 2013. Even if it does, a reconciliation bill could just find a small amount of offsetting savings to make a repeal bill deficit-reducing and thus, under the current rules, eligible for reconciliation.

I don’t think Lizza is right about the individual mandate, either, assuming that individual items in Obamacare had to be repealed one by one. The Supreme Court just said the bill has a tax on being uninsured rather than a mandate. Taxes can be changed through reconciliation.

I don’t know whether we will have a White House and Senate majority committed to repeal next year. If we do, though, repeal should be feasible."

Most people would say some phony folksy's initial response had more the sound of someone trying to convince himself that, if he could pile on enough ridicule (what Uncle Saul always said was his most potent weapon), he could persuade everybody else that a mild aside wasn't, in fact, the truth.

Did you read the relevant part of Roberts' analysis? Read this and, using these details, explain why it's a penalty and not a tax:

I certainly wasn't persuaded by the reasoning of Roberts’ opinion. His obsessive reliance on .Drexel was cramped and contrived. The central issue is that individuals are assessed a “tax” for the failure of the individual to comply with mandated behavior. It is not a “tax” levied on a volitional act. The language of the statute is unambiguously a “mandate”. We SHALL comply or face a monetary consequence. It is not a choice.

That he weakly asserts that we are “in compliance” if we merely pay the “tax” instead of acting as required flies in the face of the language of the legislation itself. But I am also in compliance if I fail to timely file my tax return but subsequently pay the tax….plus interest….plus penalties.

There are many penalties that are collected by the IRS rather than some affected agency. The amount of the “tax” may not be punitive in comparison to the cost of insurance, but I haven’t been offered the choice. I am required to pay money if I fail to act as instructed.

The scienter argument is just evanescent persiflage. There are many instances where the Court finds scienter as implicit in the absolute liability of the conduct. I get no relief from the penalties if I accidentally failed to file my tax return.

Finally, his blithe assurance that we are commonly incentivized to conduct ourselves in a fashion that the nannies would prefer fails to address the reality that we have never been incentivized through taxation to act but only to act in a certain way or to deter a disfavored activity such as smoking my favorite cigars. We are also many times penalized for acting in ways that are not preferred. If we fail to put our trash into bins, we are penalized. We are not taxed for having failed to do so.

His final weakness is that his opinion could turn if the “tax” for failing to act becomes so heavy that it becomes a penalty. How bizarre is that?

Roberts has become a bigger joke of a "conservative" than the failure that appointed him. There can be no compromise with progressives. They don't recognize the term. Time to open up RINO season, and get rid of the Boehners, and Browns, and Snowes, and McCains.

Hey Proffessor, you still gonna defend Roberts when they start taxing free speech? Or are you naive enough to believe they wouldn't dare?

By the way, I'm perplexed by the notion that a discussion, as in Drexel, that examines a purported tax and finds instead a penalty, should logically be expected to work in reverse. In that respect, the logic works a bit as a diode.

We presumably have been instructed in the jurisprudence about what a tax is not. It's not collected by another agency. It's not assessed only against those who have knowledge of their obligations. And it's not a bodacious amount....Hahahaha

That is not the same as saying that those characteristics are exclusively owned by one and not the other. All we know from Drexel is when a tax is really a penalty. More than that cannot be said.